2212.00.08 - Criminal law. Offence prevention. Criminology.
Criminal-executive law
CRIMINAL-LEGAL ASPECTS OF REGULATION OF BUSINESS ACTIVITY: THE EXAMPLE OF UZBEKISTAN
Kurbanov Marufjon Mamadaminovich
Head of the Department of Tashkent State University of Law,
Tashkent, Republic of Uzbekistan _m. kurbanov@tsul. uz
A R T I C L E I N F O
A B S T R A C T
Keywords:
entrepreneurial activity, obstruction of entrepreneurial activity, unlawful interference, unprivileged private property, imposing on the owner of knowingly unacceptable conditions, incentive norms, compulsory involvement of
business entities to charity and other activities.
This article is dedicated to the institute of protecting business through criminal law in the Republic of Uzbekistan. In it the author conducted an analysis general characteristics of crimes related to obstruction, unlawful interference in business activities according to the Criminal code of the Republic of Uzbekistan. Therefore, researching of legal nature of crimes against business, analyzing its objective and subjective signs has a very special significance. The author reveals the social danger of these kind of crimes, necessity of appointing the criminal responsibility for it. Such types of crimes against business Violation of the right to private property, Forced involvement of business entities in charity and other events, Illegal suspension of activities of business entities and (or) operations on their bank accounts are analyzed. Therefore, researching of criminal law regulation of business activity in the example of the Republic of Uzbekistan, analyzing its objective signs has a very special significance. The author reveals the social essence of criminal law regulation of business activity in Uzbekistan danger. And, namely it has been provided specifics of criminal legal protection of entrepreneurial activity in the criminal law of Uzbekistan are determined by the model of the economic system and the legal regulation of economic relations in the state. On the base of Criminal Code of the Republic of Uzbekistan, reviewed the
significant aspects of protecting business through criminal law in the Republic of Uzbekistan.
After the abolition of the Soviet economic system and the transition to a market economy, the country adopted laws that restrict government interference in business activities of various forms of ownership. The rapid development of economic relations in the country required the state to review criminal legislation in this area.
At the beginning of the last decade of the twentieth century, the economy of the Republic of Uzbekistan began to manifest itself in various forms of ownership, including private ownership. In order to create a stable economic foundation of society, the development of the environmental economy required the protection of private property, strengthening its role in the economy, further improving the business environment and the formation of a regulatory framework.
In particular, article 36 of the Constitution of the Republic of Uzbekistan states that everyone has the right to own property, confidentiality of Bank deposits and the right to inheritance, which is guaranteed by law.
The country's economic development depends on economic liberalization, guarantees of freedom
of economic activity,
entrepreneurship and labor, equality and legal protection of all forms of ownership, improvement of the business environment, creation and legal support of property.
The experience of developed countries shows that the development of entrepreneurship plays a very important role for the introduction and improvement of market relations. Entrepreneurship is also a driving force for community development and the economic base of civil society. This is due to the fact that the formation of entrepreneurial activity in society creates opportunities for the realization of personal creative potential, encourages an initiative and innovative approach to the development of various forms of ownership in the field of competition.
At the beginning of the twentieth century, the creation of a market for goods and services with a relatively low standard of living for the majority of the population, the development of various economic entities created a high level of criminogenic state of socio-economic contradictions and social relations. Therefore, the distribution of production and material values has led to the establishment of 'mass
criminal control' over the activities of business entities, which negatively affects the economic security of the country. In these conditions, business activity needed not only an effective system of civil law regulation, but also adequate criminal legal protection [2].
Crimes related to obstruction, illegal interference in business activities
Closely related to such categories of values in law, such as equality, freedom, and justice, is the category of property. At its core, it is an objective continuation of human existence, expressed in material objects and other values associated with the work of man and other activities. Property is one of the main elements of the content of society's life, public relations. Around them, legal norms are formed that regulate both the property relations themselves and all other relationships associated with this category. It makes no sense to talk about justice in a civilized and therefore reasonable society if the problems of understanding and regulating it as a source of life and development of every human being and of the whole society are not solved.
Moreover, the individual only becomes a person who has been
developed in moral, social and political terms if he has property in the sphere of a variety of social relations — an obligatory material attribute of his being, which is supported by the state and therefore has the right to property. [1]
As Walter emphasized, the right to property is a natural and inalienable human right. It is the broadest type of property rights that secure the ownership of things to subjects of civil legal relations. [2]
Socially entrepreneurial activity is an important part of the transition to the civilized market relations, of formation in a civil society, democracy development, reliable socio-economic, political and other rights and freedoms of man and citizen.
The development of entrepreneurship means the emergence of a layer of people focused on independent, proactive activities aimed at making a profit, able to take risks and be responsible for the results and consequences of their actions. This is a layer of entrepreneurs, which is the main pillar of the market economy in developed countries, and is currently in the process of formation and development in Uzbekistan.
Thus, on the one hand, entrepreneurship creates a certain group of social relations that is very
important for modern society, which, as it develops, is able to exert a reforming and civilizing influence on the entire social mechanism. On the other hand, a whole layer of carriers of these relations - entrepreneurs who fill the life of society with reasonable initiative, risk, responsibility for their work and its results-appears and grows. [2]
The country's economic development depends on economic liberalization, guarantees of freedom of economic activity,
entrepreneurship and labor, equality and legal protection of all forms of ownership, improvement of the business environment, creation and legal support of property.
The experience of developed countries shows that the development of entrepreneurship plays a very important role for of market relations. Entrepreneurship is also a driving force for community development and the economic base of civil society. This is due to the fact that the formation of entrepreneurial activity in society creates opportunities for the realization of personal creative potential, encourages an initiative and innovative approach to the development of various forms of ownership in the field of competition. [3]
In the scientific literature, there are still many definitions that characterize entrepreneurship and the entrepreneur from economic, psychological, managerial and other points of view.
For example, considering the concept of entrepreneurship and entrepreneur from an economic and managerial point of view, R. Khizrig and M. Peters note that entrepreneurship should be understood as an innovative process that creates values that have value, and under the entrepreneur-a person who spends the necessary time and effort on this process, who takes all the financial, psychological and social risk, receiving money and satisfaction for the achieved results. [5]
Therefore, in order to strengthen property relations, article 53 of the Constitution of the Republic of Uzbekistan states that private property is inviolable and protected by the state as other forms of property. [4] In turn, attention was paid to the process of denationalization and privatization of property.
The legal basis for the protection of private property is reflected in the Civil code of the Republic of Uzbekistan [5], the laws 'On private enterprise' [6], 'On
guarantees of freedom of business activity' [7] and other legal acts.
As well as the criminal code of the Republic of Uzbekistan also provides for the protection of the interests of business or other activities not prohibited by law-banking, financial, etc. Civil legislation regulates the rules of business activity, business turnover, education, state registration, reorganization, succession and liquidation of legal entities.
Special attention was paid to the development of small businesses and business entities and ensuring sustainable economic growth through the liberalization of the country's economy. In particular, as a result of a radical revision of the legal framework to ensure reliable protection of private property, small business and private
entrepreneurship, more than 20 laws were adopted aimed at liberalizing the activities of small and medium-sized enterprises and removing obstacles to business activity.
Nowadays, in Uzbekistan business entities occupy an important place in the economy and their contribution to the national economy and the development of financial markets is significant. From 1991 to 2020 it was made more than 2,500 law acts, directly or indirectly regulating the corporate relations.
Today it has gained sufficient experience, which shows that in the conditions of Uzbekistan and the justifier of the most appropriate option is itself a form of property when the shares are owned, along with domestic and foreign investors. Uzbekistan has adopted a gradual and cautious approach in its transition to a market economy.
In order to clarify the concept of 'entrepreneurial activity' it should be glanced to legal acts related to this sphere. In particular, article 3 of the Law of the Republic of Uzbekistan dated May 2, 2012 'On guarantees of freedom of entrepreneurship' defines the concept of 'entrepreneurial activity', according to which entrepreneurial activity is carried out in accordance with the law, it is an initiative aimed at generating income (profit) at own risk [11].
In accordance with the decree of the President of the Republic of Uzbekistan dated May 15, 2015 'On measures to ensure reliable protection of private property, small business and private
entrepreneurship, removing barriers to their accelerated development' [8] the Law of the Republic of Uzbekistan 'On amendments and additions to certain legislative acts of the Republic of Uzbekistan aimed at further strengthening the reliable protection of private property,
business entities, removing barriers to their accelerated development' [9], and on the basis of this Law, Chapter XIII1 of the Criminal code of the Republic of Uzbekistan was introduced (Crimes related to obstruction, illegal interference in business activities, and other crimes that infringe on the rights and legitimate interests of economic entities) [11].
For that purpose, on January 22, 2018, the Presidential Decree #5308 [12] approved the State program for the implementation of the Action Strategy for the five development priorities of the Republic of Uzbekistan for 20172021. The decree created favorable legal and organizational conditions for the development of active entrepreneurship and provides legal guarantees for the protection of business entities and illegal interference in their activities.
In turn, it should be noted that offenses related to business obstruction and illegal interference undermine the country's economy and its investment attractiveness.
Crimes related to obstruction, illegal interference in business activities represent general rules and definition of which is based on the content of legislation regulating public relations related to business.
As the country strengthens market relations, freedom of economic activity, and maximum expansion of the rights of subjects of such activity, it becomes more and more urgent to strengthen property rights in every possible way, and therefore to counteract any encroachments on it, including those that, being directly directed against other objects, often cause damage to the property interests of owners or other owners. In this regard, in order to support business entities, create favorable conditions for them, as well as increase the level of employment, prevent illegal interference in business activities plays an important role in the development of the country's economy.
So, in our opinion business activity needed not only an effective system of civil law regulation, but also adequate criminal legal protection.
Features of criminal legal protection of business activity in the criminal law of foreign countries are determined by the model of the economic system and the legal regulation of economic relations in the state.
The most similar criminal law methods of regulating business activity in Uzbekistan and in the former republics of the USSR. In these countries, as in Uzbekistan,
criminal liability for obstructing business activities is established.
Currently, a significant majority of the population is engaged in entrepreneurial activities. Therefore, it would be useful to clarify the concept of this term. The term "entrepreneur" was coined by the French economist Richard Cantillon, who lived in the early eighteenth century. Since then, it has meant a person who risks starting a new business or developing a new idea, new product or service offered to the community [3]. As V. Dal notes: 'being an entrepreneur means making a decision to do something new'. Consequently,
entrepreneurship can be defined as the creative expression of a person or enterprise in developing new products, quality services, or productivity [1].
In particular, article 3 of the Law of the Republic of Uzbekistan dated May 2, 2012 'On guarantees of freedom of entrepreneurship' defines the concept of 'entrepreneurial activity', according to which entrepreneurial activity is carried out in accordance with the law, it is an initiative aimed at generating income (profit) at your own risk [10].
In accordance with article 4 of the Law of the Republic of Uzbekistan dated may 2, 2012 'On guarantees of freedom of
entrepreneurship', business entities (business entities) are legal entities and individuals registered in accordance with the established procedure and engaged in business activities [10].
Accordingly, these actions -crimes associated with obstruction, unlawful interference in business activities, prevent illegal interference in entrepreneurial activities of legal and natural persons registered in the prescribed manner, and carry on business at his own risk and expense to own property liability.
According to the Criminal law of the Republic of Uzbekistan, crimes related to obstruction of business activity or illegal interference can be divided into the following two groups:
1) crimes related to obstruction of business activity - Violation of the right to private property (Criminal code of the Republic of Uzbekistan, article 1921), Forced involvement of business entities in charity and other events (Criminal code of the Republic of Uzbekistan, article 1924) Violation of legislation on licensing and legislation on permitting procedures (Criminal code of the Republic of Uzbekistan, article 1925), Illegal refusal, non-use or obstruction in the application of benefits and preferences (Criminal code of the Republic of Uzbekistan, article 1926);
2) crimes related to illegal interference in business activities -Violation of the procedure for conducting inspections and audits of the financial and economic activities of business entities (Criminal code of the Republic of Uzbekistan, article 1922), Illegal suspension of activities of business entities and (or) operations on their bank accounts (Criminal code of the Republic of Uzbekistan, article 1923), Illegal claim of information on the availability of funds in the accounts of business entities (Criminal code of the Republic of Uzbekistan, article 1928).
These types of crimes are considered less serious danger according to their character.
It is determined that the main direct object of this crime is social relations that are formed in connection with ensuring the freedom of entrepreneurial activity guaranteed by the Constitution of the Republic of Uzbekistan from illegal interference of officials. As an additional direct object of the crime under consideration, it is necessary to designate public relations arising in connection with ensuring the normal activities of state authorities and local self-government.
The objects of crimes related to obstruction of business activity, illegal interference, include public
relations that ensure freedom of business activity in the economy, in particular, established by law.
Followings are considered as a direct objects:
* inviolability and protection of private property of citizens;
* verification of financial and economic activities of business entities;
* maintaining the procedure for suspending the activities of business entities and (or) operations on their Bank accounts;
* regulation of free use of own funds by business entities;
* ensuring the licensing procedure and the procedure for licensing the activities of business entities;
* ensuring the procedure for applying the benefits and preferences provided for by law for business entities;
* secrecy and confidentiality of business information on the Bank accounts of business entities related to the confidentiality and security of information about funds, the availability of funds on Bank accounts and operations on Bank accounts.
The subject of the crime is property in various forms.
A necessary indication of the objective side of this type of crime is that the criminal was previously
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subjected to administrative punishment for such actions.
The subject of the alleged crimes is a sane individual who has reached the age of 16 and has the special characteristics of a criminal. These types of crimes are committed by an official or employee of a controlling, law enforcement or other state body or public organization.
According to the criminal law of the Republic of Uzbekistan, official is the person appointed or elected permanently, temporarily or on special authority performing the functions of a representative of authority or performing organizational-administrative, is administrative-economic functions in state bodies, local authorities, enterprises, institutions,
organizations, irrespective of forms of ownership and authorized for the performance of legally significant actions, as well as the person performing these functions in international organizations or in legislative, an Executive, administrative, or judicial body of a foreign state.
According to the criminal law of the Republic of Uzbekistan, the term 'employee' means a person employed under an employment or civil contract by the government body, commercial, non-profit
E-ISSN: 2181-1024
organizations that do not have signs officials.
Crimes related to obstruction of business activity or illegal interference are committed intentionally.
It is clear that the commission of a crime under aggravating circumstances affects the type and size of the sentence imposed. Accordingly, crimes related to obstruction of business activities are committed under the following aggravating circumstances:
• on the grounds of an objective party-with the infliction of major and especially large damage;
• on the grounds of a subjective side - by prior agreement of a group of persons or in the interests of an organized group.
Resolution of the Plenum of the Supreme court of the Republic of Uzbekistan dated December 11, 2013 #20 'On certain issues of judicial practice in cases related to business activities' indicates that illegal interference in business activities should be represented as follows:
- illegal restriction and (or) deprivation of property rights, encroachment on private property, forcing the owner to knowingly unacceptable conditions;
- compulsory involvement of business entities in charity and
Volume 1, Issue 1 (2020)
other activities related to the allocation of money and other material assets;
- violation of the established procedure and terms for issuing licenses and other permits;
- illegal refusal to use privileges and preferences, non-use or obstruction of application, etc. [13]
The legislator threatens to impose criminal penalties for such crimes as imprisonment, restriction of liberty, fine, deprivation of a certain right, mandatory community service, correctional labor.
The criminal law also serves as an incentive for a person to behave positively, which significantly reduces the social risk of committing a crime. In particular, article 1924 of the Criminal code of the Republic of Uzbekistan provides for an incentive norm. According to this, in the case of compensation for material damage, the penalty of restriction of liberty and deprivation of liberty is not applied.
Objective side of this crime -Forced involvement of business entities in charity and other events (article 1924) is the forced involvement of business entities by an official or employee of the controlling, law enforcement and other state bodies and state organizations to charity and other
activities related to the diversion of funds and other material values.
It should be pay attention to that, this crime commits against the willing of business entities.
In this regard, it should be noted that taxes and other mandatory payments for carrying out the activities of the profession, as well as privileges and preferences on tariffs are provided for, but the sponsorship law does not specify the granting of benefits and preferences on taxes and other mandatory payments and tariffs to the subjects of sponsorship. In our opinion, the benefits and preferences granted for the performance of sponsorship and employment activities, which in essence are mutually similar activities, are intended to be unified.
In accordance with the decree of the Cabinet of Ministers of the Republic of Uzbekistan # 227 of August 12, 2014 'Regulation on the procedure for the use of funds in the form of charitable donations of business entities by budgetary organizations' was adopted, according to which compulsory involvement of business entities in charitable activities and other activities related to their spending
In the case of compulsory involvement of business entities in sponsorships and other activities related to the allocation of funds and
other material values, it shall be understood by the official or employee who has the relevant authority that the funds in the account of the business entity or its material assets are involved in sponsorship, charity or certain types of sponsorship.
When it comes to compulsory involvement, it should be understood that the entrepreneurial subjects are forced into sponsorship for the purpose of carrying out activities, providing services, carrying out works through coercion, harassment, demand, intimidation in a non-masculine manner.
In conclusion, it is important to note that illegal interference of officials in business activities is a special type of official abuse in the sphere of economic activity. The main factors contributing to the increased public danger of illegal interference of officials in business activities are the following:
1) violation of the freedom of entrepreneurial activity guaranteed by the Constitution of the Republic of Uzbekistan by such an act;
2) the possibility of a negative impact on the competition of economic entities;
3) discrediting state authorities and local self-government bodies.
The experience of criminal law protection of business activities in Uzbekistan is most useful for improving the protection of the rights and legitimate interests of business entities.
In some countries where business activity has long been an organic part of the economy, criminal law protection of business activity is implemented through the application of general rules on crimes in the field of economic activity and official crimes.
This is largely due to the need to ensure the economic security of the state, compliance with the ban on the penetration of criminal proceeds into the legal sector of the economy.
The specifics of criminal legal protection of entrepreneurial activity in the criminal law of Uzbekistan are determined by the model of the economic system and the legal regulation of economic relations in the state.
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